Citation Nr: 0424872
Decision Date: 09/09/04 Archive Date: 09/16/04
DOCKET NO. 03-23 016 ) DATE
)
)
THE ISSUE
Whether a May 2003 Board of Veterans' Appeals (Board)
decision that disallowed the veteran's claim for an earlier
effective date for service connection of diabetes mellitus
should be revised or reversed on the grounds of clear and
unmistakable
error (CUE).
ATTORNEY FOR THE BOARD
M. Carr, Associate Counsel
INTRODUCTION
The veteran had active service from December 1967 to December
1970. This matter comes to the Board on motion from the
veteran, pursuant to 38 U.S.C.A. § 7111 (West 2002), alleging
clear and unmistakable error in a Board decision dated in May
2003, which denied the veteran's claim of entitlement to an
effective date earlier than May 2001 for service connection
for diabetes mellitus.
FINDINGS OF FACT
1. The veteran filed a claim for entitlement to service
connection for diabetes mellitus in May 2001.
2. In January 2002, the veteran was awarded service
connection for diabetes mellitus, effective from May 2001,
based on the revision to regulatory presumptions regarding
service connection for disability due to exposure to chemical
herbicides used in the Southeast Asia Theater of Operations,
which became effective in May 2001.
3. By a decision entered in May 2003, the Board disallowed
the veteran's claim for an earlier effective date for service
connection for diabetes mellitus.
4. In deciding the veteran's claim in May 2003, the Board
did not commit an error of fact or law that, when called to
the attention of later reviewers, compels the conclusion, to
which reasonable minds could not differ, that the result
would have been manifestly different but for the error.
CONCLUSION OF LAW
The May 2003 Board decision was not clearly and unmistakably
erroneous in disallowing the veteran's claim for an earlier
effective date for service connection for diabetes mellitus.
38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400,
20.1401, 20.1403 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-4 75, 114 Stat. 2096 (2000). This
law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14
Vet. App. 174 (2000) (per curiam order) (holding that VA
cannot assist in the development of a claim that is not well
grounded). The new law also includes an enhanced duty to
notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
was implemented with the adoption of new regulations. See 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003).
However, the regulations add nothing of substance to the new
legislation and the Board's consideration of the regulations
do not prejudice the appellant. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
The U.S. Court of Appeals for Veterans Claims (Court) has
noted that the VCAA is not applicable to all cases. Wensch
v. Principi, 15 Vet. App. 362 (2001) (citing Smith v. Gober,
14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App.
143 (2001)). In this case, the issue on appeal is a CUE
motion, which must be based on the record and law that
existed at the time of the prior adjudication in question.
38 C.F.R. § 20.1403(b). Therefore, a remand for application
of the VCAA is not required. See Livesay v. Principi, 15
Vet. App. 165, 179 (2001) (en banc) (VCAA not applicable to
CUE claim).
II. CUE
Motions for review of prior Board decisions on the grounds of
CUE are adjudicated pursuant to the Board's Rules of Practice
at 38 C.F.R. §§ 20.1400-1411.
CUE is a very specific and rare kind of error. 38 C.F.R. §
20.1403(a) (2002). It is the kind of error, of fact or law,
that when called to the attention of later reviewers compels
the conclusion, to which reasonable minds could not differ,
that the result would have been manifestly different but for
the error. Id. Generally, either the correct facts, as they
were known at the time, were not before the Board, or the
statutory and regulatory provisions extant at the time were
incorrectly applied. Id.
Any party to a final Board decision can make a motion to have
the decision revised or reversed on grounds of CUE. 38
U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400(a),
20.1401(b) (2002). In order to prevail on such a motion, the
moving party must establish that there was an error in the
Board's adjudication, and that the error was such that, had
it not been made, the outcome of the adjudication would have
been manifestly different. 38 C.F.R. § 20.1403(c) (2002).
If it is not absolutely clear that a different result would
have ensued, the error complained of cannot be "clear and
unmistakable." Id. A disagreement with how the Board
weighed or evaluated the facts in a particular case is not
CUE. Id. § 20.1403(d)(3). Neither can CUE be established by
virtue of VA's failure to fulfill the duty to assist. Id. §
20.1403(d)(2).
Again, a CUE claim must be decided based on the record and
law that existed at the time of the prior adjudication in
question. 38 C.F.R. § 20.1403(b).
Here, the veteran seeks revision or reversal of the Board's
May 2003 decision on grounds of CUE. Specifically, the
veteran argues that he was diagnosed with Type II diabetes
before filing his claim for service connection for diabetes
mellitus, which he argued was, in fact, filed in August 1998.
This is exactly the same argument before the Board when it
rendered its May 2003 decision.
The veteran filed his claim for diabetes in May 2001. He
also claimed psychomotor retardation, major depression,
dysthymic disorder, PTSD, hypertension, anhedonia, anxiety,
and insomnia. He stated that he felt these conditions were
caused by exposure to Agent Orange and his Vietnam
experiences.
In January 2002, the RO granted service connection for
diabetes mellitus associated with herbicide exposure with a
20 percent evaluation, effective May 7, 2001. Thereafter,
the veteran submitted statements in which he argued that he
had filed his claim for diabetes in 1998. In May 2002, the
RO issued a rating decision which denied the veteran's claim
of an earlier effective date for service connection for
diabetes mellitus. The rating decision referenced two
letters submitted by the veteran in 1998, noting that both
were silent as to a claim for diabetes.
A review of the record revels a letter from the veteran,
received August 6, 1998, in which the veteran stated that he
was in Vietnam in 1969 when Agent Orange was dropped, stating
further that he had major depression, anhedonia, sleep
disturbances, post-traumatic stress disorder (PTSD),
dysthymic disorder, and persistent anxiety and psychomotor
retardation. He further stated that he had been treated at
Oakland Park VA Outpatient Clinic. In a letter from the
veteran, received August 25, 1998, the veteran repeated the
same statements made in the August 6, 1998 letter. Finally,
in a letter dated November 9, 1998, the veteran stated that
he was claiming mental disability. Specifically, he stated
that he had been diagnosed with psychomotor retardation,
major depression, sleep disturbances, "PDS", and anhedonia.
He also referred to treatment records at the Oakland Park VA
Outpatient Clinic. These statements make no mention of
diabetes. The Board notes that progress notes from the
Oakland Park VA Outpatient Clinic do, indeed, show treatment
for diabetes in the 1990's.
The Board stated in the May 2003 decision that the basis for
the RO's award of service connection for diabetes was the
relatively recent revision to certain regulatory presumptions
regarding service connection for disability due to exposure
to chemical herbicides used in the Southeast Asia Theater of
Operations. These regulations essentially provide that
service connection may be presumed for adult-onset (Type II)
diabetes mellitus for those exposed to chemical herbicides
used in the Southeast Asia Theater of Operations.
The veteran in this case served in Vietnam, is considered to
have been exposed to the herbicide commonly referred to as
Agent Orange, and established that he had diabetes mellitus.
Thus, service connection for diabetes was established on a
presumptive basis pursuant to 38 C.F.R. § 3.309(e). The
veteran contends that since he had a claim for service
connection for this disability pending prior to May 2001, the
effective date for this benefit should be from the date of
this earlier claim. Specifically, he asserts that he filed a
claim for service connection for diabetes mellitus in 1998.
The provisions of 38 C.F.R. § 3.114 address the situation
where an award of benefits is based on a liberalizing law, as
occurred here. This regulation provides that the effective
date of such an award "shall not be earlier than the
effective date of the act." In this case, the effective date
of the change in law by which service connection for diabetes
may be presumed for those exposed to Agent Orange, was May 8,
2001. See Liesegang v. Secretary of Veterans Affairs, 312
F.3d 1368 (Fed. Cir. 2002). Here, the RO awarded service
connection in this case effective from May 7, 2001, the date
of the veteran's claim. This being so, the Board found no
basis for assigning an effective date for service connection
for diabetes mellitus any earlier than that which has already
been established.
The Board also considered the possibility that service
connection for diabetes could have been established, at least
in theory, without the benefit of the change in regulations
regarding presumptions for service connection for disability
due to exposure to chemical herbicides used in Vietnam. If
that were so, the effective date of the award of benefit,
would not be limited by the provisions of 38 C.F.R. § 3.114.
Rather, the effective date would be the "[d]ay following
separation from active service or date entitlement arose if
claim is received within 1 year after separation from
service; otherwise, date of receipt of claim, or date
entitlement arose, whichever is later." 38 C.F.R. §
3.400(b)(2)(i); see also 38 U.S.C.A. § 5110(a) and (b)(1).
In this regard, there is no record of any complaints or
diagnosis of diabetes in service, and none for many years
after service. Indeed, the earliest record on which diabetes
is diagnosed is dated in the 1990's. In view of this,
outside of the operation of the presumption established in
May 2001, the Board found no basis upon which to link the
veteran's diabetes to service. Accordingly, the Board found
that but for the operation of the presumption, service
connection for diabetes would not have been established.
Furthermore, and contrary to the veteran's contentions, the
Board found that the record did not reveal a claim for
entitlement to service connection for diabetes mellitus prior
to the May 2001 claim. Under these circumstances, the Board
found that the more general rules regarding the establishment
of an effective date for service connection from the day
following service, or the later of the date of claim or date
entitlement arose were not for application and denied the
veteran's claim of entitlement to an earlier effective date
for service connection for diabetes mellitus.
However, the Board notes that in May 1989, the United States
District Court for the Northern District of California voided
all denials of Agent Orange claims based on the regulations
that became effective on September 25, 1985. Nehmer v.
United States Veterans' Administration, 712 F. Supp. 1404,
1409 (N.D. Cal. 1989) (Nehmer I). The district court later
clarified its ruling, holding that the covered claims were
those in which the disease or cause of death was later found
to be service connected under valid VA regulations. Nehmer
v. United States Veterans' Administration, 32 F. Supp. 2d
1175, 1183 (N.D. Cal. 1999) (Nehmer II).
In May 1991, the United States government and the plaintiffs
in the Nehmer litigation entered into a stipulation according
to which VA would readjudicate claims the denials of which
were voided by Nehmer I. Nehmer v. United States Veterans'
Administration, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991)
(Nehmer Stipulation). The effective date of any resulting
award of benefits would be based on the filing date of the
original claim, for claims originally filed before May 3,
1989 (Stipulation 1), or on the later of the filing date of
the claim or the date of disability or death of the veteran,
for claims filed after May 3, 1989 (Stipulation 2). See
Williams v. Principi, 310 F.3d 1374, 1375-76 (Fed. Cir.
2002).
The Nehmer stipulations were later incorporated into a final
regulation that became effective on September 24, 2003. 68
Fed. Reg. 50,966 (Aug. 25, 2003) (to be codified at 38 C.F.R.
§ 3.816). That regulation defines a "Nehmer class member"
to include a Vietnam veteran who has a covered herbicide
disease. Under the regulation a claim will be considered a
claim for compensation for a particular covered herbicide
disease if the claimant's application and other supporting
statements and submissions may reasonably be viewed, under
the standards ordinarily governing compensation claims, as
indicating an intent to apply for compensation for the
covered herbicide disability. The Board notes that this
regulation's effective date was subsequent to the Board
decision at issue in this matter. In this regard, the Board
emphasizes that the regulation is being cited for the
explicit purpose of showing an intention to codify VA policy
in response to the Nehmer case. The regulation is not being
cited as authority in the matter at issue before the Board.
The question now before the Board, thus, is whether the
Board's failure in its May 2003 decision to construe the 1998
letters as an informal claim for diabetes mellitus
constituted a clear and unmistakable error.
The VA regulation governing informal claims provides that:
Any communication or action, indicating
an intent to apply for one or more
benefits under the laws administered by
the Department of Veterans Affairs, from
a claimant, his or her duly authorized
representative, a Member of Congress, or
some person acting as next friend of a
claimant who is not sui juris may be
considered an informal claim. Such
informal claim must identify the benefit
sought.
38 C.F.R. § 3.155(a) (2002).
Here, the Board finds that the above-mentioned 1998 letters
do not constitute an informal claim, as nowhere in these
letters is the benefit sought (service connection for
diabetes mellitus) identified. As stated above, the VA
treatment records referenced in the 1998 letters do show
treatment for diabetes. However, such records do not alone
generally constitute an informal claim for service
connection. See Brannon v. West, 12 Vet. App. 32, 35 (1998).
Here, even when viewed in connection with the 1998 letters,
the VA treatment records do not establish an informal claim.
The letters listed specific disabilities for which the
veteran sought compensation. Diabetes was not among the
conditions listed. The mere fact that the medical records
referenced in regard to these other, specific disabilities
happened to contain treatment for diabetes does not amount to
an informal claim. Thus, even when these filings, together,
are construed in the claimant's favor, it is not obvious or
undebatable that they constitute an informal claim for
service connection for diabetes. Therefore, it was not a
clear and unmistakable error for the Board to decline to
construe the 1998 letters as informal claims for service
connection for diabetes mellitus.
Therefore, given the foregoing, the statement by the veteran,
received on May 7, 2001, was properly treated as the
veteran's claim for service connection for diabetes mellitus.
As May 7, 2001 was also the effective date assigned for
service connection for diabetes mellitus, the Board finds
that the May 2003 Board decision denying entitlement to an
earlier effective date for service connection for diabetes
mellitus was not the product of CUE. Based on the evidence
that existed at the time of the May 2003 Board decision, the
Board is unable to find any error in the Board's adjudication
such that, had it not been made, the outcome of the
adjudication would have been manifestly different. The
motion for revision or reversal on the basis of CUE,
therefore, is denied.
ORDER
The motion is denied.
____________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION ON YOUR MOTION FOR REVIEW FOR CLEAR AND
UNMISTAKABLE ERROR
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision on your motion for the Board to review one or more of
its final decisions for clear and unmistakable error (CUE). If you are
satisfied with the outcome of this decision, you do not need to do
anything. However, if you are not satisfied with this decision, you have
the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision.
None of these things is mutually exclusive -you can do all three at the
same time if you wish. However, if you file a Notice of Appeal with the
Court and motion with the Board at the same time, this may delay your case
because of jurisdictional conflicts. If you file a Notice of Appeal with
the Court before you file a motion with the BVA, the BVA will not be able
to consider your motion without the Court's permission.
There is no time limit for filing a motion for reconsideration or a motion
to vacate with the Board.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the Court. If you also want
to file a motion for reconsideration or a motion to vacate, you will still
have time to appeal to the Court. As long as you file your motion(s) with
the Board within 120 days of the date this decision was mailed to you, you
will then have another 120 days from the date the BVA decides the motion
for reconsideration or the motion to vacate to appeal to the Court. You
should know that even if you have a representative, as discussed below, it
is your responsibility to make sure that your appeal to the Court is filed
on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's website on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision. See 38 C.F.R. 20.1090 --20.1003. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Address your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
VA
FORM
JUN
2003(R
S)
4597b Page 1
Continued
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. See 38
C.F.R. 20.904. For example, you were denied your right to representation
through action or inaction by VA personnel, you were not provided a
Statement of the Case or Supplemental Statement of the Case, or you did not
get a personal hearing that you requested. You can also file a motion to
vacate any part of this decision on the basis that the Board allowed
benefits based on false or fraudulent evidence submitted by or on behalf of
the appellant. Send this motion to the address above for the Director,
Management and Administration, at the Board. Remember, the Board places no
time limit on filing a motion to vacate, and you can do this at any time.
However, if you also plan to appeal this decision to the Court, you must
file your motion within 120 days from the date of this decision.
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, you should write directly to the Court for information. Upon request,
the Court will provide you a state-by-state listing of persons admitted to
practice before the Court who are available to represent appellants. This
information is also provided on the Court's website at
www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003(R
S)
4597b Page 2